Collins v. Boston Elevated Railway Co.
217 Mass. 420
Mass.
1914
Check Treatment
Rugg, C. J.

The plaintiff seeks to recover damages for injuries sustained while trying to board an elevated train in the subway station at Boylston Street. Her testimony was in substance that she waited there three or four minutes for the train: that there was a very large crowd, which grew larger and larger while she *421was waiting: that there wasn’t much chance to move up, there was such a crowd, “and just before the train came in, the crowd grew all around her; that as the car came in and the door opened ‘I was taken off my feet and I was pushed right into this space’ [by the] pushing crowd, the surging crowd all around me;” that she struck against the car and went down into the open space, where she was injured. In reply to the question, "What do you mean by ‘surging all around,’ ” she said, “Swayingback and forth.” The plaintiff’s companion testified, “The crowd was pushing all the time from the time we entered, almost; there was a restless crowd there all the time; and she [the plaintiff] was pushed into this hole by the force of the crowd.” There was evidence that the plaintiff had been in the habit of taking the train at this station at about the same hour, and that the conditions as to the crowd and its actions on other occasions were identical with those on this night.

The subway and its platform were designed and constructed by public authority, acting through the Boston transit commission, and have been leased to the defendant company. Having had no control over the plan or the size of the platform, the defendant is not responsible for the existence of spaces between the cars and the platform. Willworth v. Boston Elevated Railway, 188 Mass. 220. Hilborn v. Boston & Northern Street Railway, 191 Mass. 14. Plummer v. Boston Elevated Railway, 198 Mass. 499, 509. The case at bar, in respect of the conduct of the crowd and its effect upon the plaintiff, is distinguishable in its facts from Anshen v. Boston Elevated Railway, 205 Mass. 32, where the plaintiff put the emphasis of her case upon the open space between the fixed platform and the car, and the failure of the defendant to provide a movable platform, and also from Seale v. Boston Elevated Railway, 214 Mass. 59.

The plaintiff’s contention does not rest upon the existence of the open space, but upon the uncontrolled conduct of a restless and surging crowd heedless of the safety of individuals, such as commonly the defendant permitted to be upon its platform at this place. The case is indistinguishable in its salient facts from Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, and is governed by the principles there stated at length. To the same effect see Beverley v. Boston Elevated Railway, 194 Mass. 450; *422Kelley v. Boston Elevated Railway, 210 Mass. 454; and Coy v. Boston Elevated Railway, 212 Mass. 307.

In accordance with the terms of the report let the entry be

Case to be submitted to arbitrators to determine damages.